Interim Decision #2712 

MATTER OF HERNANDEZ 

In Visa Petition Proceedings 

A-21134950 

Decided by Board June 21, 1979 

(1) Under Article 86 of the 1965 Constitution of Guatemala, all children are equal before 

the law and have identical rights. 

(2) Article 209 of the Civil Code of Guatemala provides that children born out of wedlock 

have the same rights as those born in wedlock. 

(3) Article 211 of the Civil Code of Guatemala providca that acknowledgment of children 

may be effected in the birth records by virtue of a personal appearance by a parent 

before the official of the Civil Registry. 

(4) When the country where the beneficiary was born and resides eliminates all legal 

distinctions between legitimate and illegitimate children, all natural children are 

deemed to be the legitimate offspring of their natural father from the time that 

country's laws are cbanged.Lauv.Kiky, 563 F.2d 543 (2 Cir. 1977); Matter of Sanchez, 

16 MN Dec. 611 (BIA 1979); Matter of Wong, 16 1&N Dec- 646 (BIA 1979). 

ON BEHALF OF PErrricninte Carlos B. Fernandez, Esquire 

700 S.W. 22 Avenue 

Miami, Florida 33135 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

On January 8, 1979, the Acting District Director denied the visa 

petition filed by the petitioner on behalf of the beneficiary as his 

daughter under the provisions of section 203(a)(2) of the Immigration 

and Nationality Act, 8 U.S.C. 1153(a)(2). The petitioner appeals from 

that decision. The appeal will be sustained and the visa petition 

approved. 

- The petitioner is a native and citizen of Guatemala who was admitted as a lawful permanent resident of the United States on July 20, 

1975. The beneficiary is also a native and citizen of Guatemala who was 

born out of wedlock to the petitioner and a woman named Gloria 

Mazariegos Alvarez in Guatemala City, Guatemala, on January 8, 

1974. According to the beneficiary's birth certificate, the petitioner 

registered the beneficiary's birth with the Civil Registrar for 

Guatemala City following her birth. 
Interim Decision #2712 

The Acting District Director denied the visa petition ruling that the 

beneficiary was not entitled to preference immigration status because 

she was never legitimated. The petitioner countered the Acting District Director's conclusion by stating that under Articles 209 and 211, 

Fifth Chapter of the Civil Code of Guatemala, the beneficiary is 

deemed to be legitimate. 

In visa petition proceedings, the burden of establishing the claimed 

relationship is upon the petitioner. Matter of Brantigan, 11 I&N Dec. 493 

(BIA 1966). The applicable statute is section 101(b)(1) of the Act, 8 U.S.C. 

1101(b)(1), and its pertinent subsections are (A) and (C), which provide: 

The term "child" means an unmarried person under twenty-one years of age who 

is— 

(A) a legitimate child; or 

(C) a child legitimated under the law of the child's residence or domicile, or under 

the law of the father's residence or domicile, whether in or outside the United 

States, if such legitimation takes place before the child reaches the age of 

eighteen years and the child is in the legal custody of the legitimating parent or 

parents at the time of such legitimation. 

The term "legitimate" as used in section 101(b)(1)(A) normally 

refers to a child born in wedlock. See Matter of James, 15 MN Dec. 

544 (BIA 1975); Matter of Dela Rosa, 14 I&N Dec. 728 (BIA 1974); 

Matter of Kubicka, 14 I&N Dec. 303 (BIA 1972). However, when the 

country where the beneficiary was born and resides eliminates all 

legal distinctions between legitimate and illegitimate children, all 

natural children are deemed to be the legitimate or legitimated 

offspring of their natural father from the time that country's laws 

are changed. See Chin Lau v. Kiley, 563 F.2d 643 (2 Cir. 1977); Matter. 

of Sanchez, 16 I&N Dec. 671 (BIA 1979); Matter of Wong, 16 I&N Dec_ 

646 (BIA 1978). The test we have applied for preference immigration 

purposes is equality of filial rights when compared with those of 

children born in wedlock. Compare Matter of Sanchez, supra, with 

Matter of Clahar, 16 I&N Dec. 484 (BIA 1978); Matter of Reyes,16 I&1•1 

Dec. 475 (BIA 1978). 

Our research of Guatemalan law leads us to conclude that under 

Article 86 of the 1965 Constitution of Guatemala' presently in force, 

all children are equal before the law and have identical rights. The 

1965 Constitution followed the previous Guatemalan Constitutions of 

19452and 1956,3which had specifically abolished all legal differences 

between children regardless of whether or not they have been born 

' Constitution of the Republic of Guatemala, ism [Pau American Union, Washington, D.C., 1966 (English Version)]. 

Constitution of March 13, 1945, Article 74. 

' Constitution of February 6, 1956, Article 90. 

8 
Interim Decision #2'712 

out of wedlock. 

Article 209 of the Civil Code of Guatemala, adopted pursuant to 

Decree-Law 106 of September 14, 1968, provides that "children born 

out of wedlock have the same rights as those born in wedlock.. .." 

Article 211 further provides that acknowledgment of children may be 

effected in the birth records by virtue of a personal appearance by the 

parent before the officials of the Civil Registry. 

In view of the Guatemalan law before us and the beneficiary's birth 

certificate, we conclude that the petitioner has met his burden of 

proving that he is entitled to the immigration benefits sought. Matter 

of Branagan, supra. The 1965 Constitution was in effect when the 

beneficiary was born on January 8, 1974, in Guatemala. Her birth was 

acknowledged by her petitioning father before the Civil Registrar of 

Guatemala City. Therefore, the beneficiary qualifies for preference 

immigration purposes as the "child" of her lawful permanent resident father as defined in section 101(b)(1) of the Act because she was 

legitimate at birth under Guatemalan law. Accordingly, the appeal 

will be sustained and the visa petition approved. 

ORDER: The appeal is sustained, and the visa petition is 

approved. 

APPENDIX A 

Constitution of the Republic of Guatemala, 1965. 

Art. 86 [par. 2]. All children are equal before the law and have identical rights. 

Civil Code of Guatemala, July 1, 1964. 

Art. 209. Children born out of wedlock have the same rights as those born in 

wedlock; this notwithstanding, in order that they be allowed to live in the conjugal 

home, express consent of the other spouse must be granted. 

Art. 211. Voluntary acknowledgment [of children] may be effected: 

1) in the birth records, by virtue of personal appearance before the Official of 

the Civil Registry.